Friday, 1 June 2007

SOUTH BEND, Ind. - A man scheduled to be put to death in two weeks for killing a police officer asked a federal appeals court Thursday to stay his execution, arguing he deserves a new hearing because of a U.S. Supreme Court ruling last year.Attorneys for Michael Lambert asked the 7th Circuit Court of Appeals in Chicago to recall a mandate it handed down Aug. 22, 2006, clearing the way for the state to proceed with the planned execution.

The appeals court, in a 2-1 decision, last year denied Lambert's request to again challenge a state Supreme Court's ruling regarding statements the jury heard from the widow of Muncie Officer Gregg Winters about the effect her husband's death had on her family.The high court ruled the jury should not have heard the statements, but concluded the aggravating circumstances outweighed the mitigating circumstances and affirmed his death sentence.

But Lambert's attorneys argue that the U.S. Supreme Court ruled on Jan. 11, 2006 in Brown v. Sanders that a death sentence must be set aside if a jury considered inadmissible evidence that otherwise would not have been before it.Lambert's attorney, Alan Freedman, said although the appeals court ruling came after the Supreme Court ruling, that point was never raised."This gets down to some basic logic, before you kill this guy you should make sure this is the correct decision," Freedman said in a telephone interview.

Staci Schneider, spokeswoman for the state attorney general's office, said it had no comment on Lambert's motion. She said a response will be filed with the court on Friday.Lambert is scheduled to die by lethal injection on June 15 at the Indiana State Prison in Michigan City for fatally shooting Winters on Dec. 28, 1990. Police arrested Lambert for public intoxication, briefly patted him down and put him in the back seat of Winters' cruiser. A few minutes later, two officers saw Winters' car approaching when the car suddenly slid off the road and into a ditch.Winters had been shot five times in the back of his head and neck.

Lambert's attorneys concede that a motion to recall the mandate is an "extraordinary remedy," but contend it is the correct one considering the U.S. Supreme Court ruling.In requesting a stay of execution, Lambert's attorneys contend he should not be executed until two other court cases are decided.The first is the case of Eric D. Holmes, who was sentenced to death for the 1989 murders of two Shoney's restaurant workers in Indianapolis. He was sentenced even though the jury at his trial did not return a unanimous recommendation for the death sentence.

The appeals court is considering that case, which Freedman said is similar to Lambert's. The other is a case challenging the state's lethal injection protocol. David Leon Woods also was part of that legal challenge. He was put to death May 4 for killing a neighbor in 1984.The request for the stay of execution also says that the attorney general previously has asked for 45 days from the time the execution date is set to the execution. The Supreme Court set the June 15 execution on May 21 - a span of just 25 days.

Lambert's attorneys argue that if the state Supreme Court had stuck to the 45-day waiting period, the appellate court could have decided the case without a stay. They also say the U.S. Supreme Court is expected to make its ruling on the lethal injection protocol by then.